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Is a Human Rights Foreign Policy Possible?


The case of the European Union

Ruby Gropas∗

Abstract

Nineteen Ninety Eight marked the fiftieth anniversary of the Universal Declaration of Human
Rights. During the latter part of this century human rights made their way in international law
and in international relations. John Vincent explains, however, that there exists an ‘inescapable
tension’ between human rights and foreign policy. By briefly tracing through the relationship
between human rights and international relations, this article highlights certain tensions which
exist when a human rights foreign policy is pursued. It also attempts to show that foreign
policy-making has been challenged into a new era where human rights considerations need to
be addressed. This challenge has been dynamically undertaken by the European Union and, in
particular, by the EU institutions. Indeed, the European Union has declared the protection and
promotion of human rights a guiding principle of its common foreign policy. This article offers
a comprehensive review of the objectives of the EU’ s human rights policy, of the approach
that the EU institutions and the Member States have developed in order to promote the respect
for fundamental rights and freedoms in third countries, and of the instruments which have been
developed for this purpose in the context of CFSP, of the Union’s external economic relations
and of its development co-operation policies.

Introduction

Nineteen ninety eight marked the fiftieth anniversary of the Universal Declaration of Human
Rights, a declaration which set a new standard of civilization. During these past fifty years,
human rights have entered international law with an unprecedented level of standard-setting
and development of monitoring and reporting mechanisms, in particular within the United
Nations. In spite of the tension which persists between the protection of human rights and non-
intervention in a state’s internal affairs, human rights violations have now become a legitimate
concern of the international community. Hence, human rights have also entered into the realm
of foreign policy making.

During the Cold War, human rights and fundamental freedoms were subsumed by the
geopolitics and national security constraints of the bipolar world. In the post Cold War era,
though, protection for individual liberties is broadening and has become more than ever before
∗ Ruby Gropas is Ph.D. Candidate, Centre of International Studies, New Hall, University of Cambridge. This
paper was presented at the 16th Annual Graduate Student Conference: ‘The Changing Face of Europe’, at the
Institute on Western Europe, Columbia University, NY, March 25-27, 1999. The author is extremely grateful to
Dr. Geoffrey Edwards for his invaluable comments and guidance.
a factor determining the legitimacy of a regime as well as the foreign policy objectives of many
states.

Respect for the triptych “human rights, democracy and the rule of law” has become one of the
guiding principles of the European Union (EU)and its Member States’ foreign policies. The
states of western Europe have been very active in the field of human rights - whether in the
context of the CSCE/OSCE, or in their links with the Third World through their development
co-operation policies. The challenges of the end of the Cold War, however, provided the EU
with the opportunity to make its foreign policy, its external economic relations, and its
development co-operation conditional upon respect for human rights. The European
Commission and the European Parliament have been particularly instrumental in the
advancement of these principles and by developing an approach combining proactive and
reactive measures in order to encourage the improvement of human rights situations in third
countries, or to sanction their abuse.

Securing a place for human rights on the foreign policy agenda, first through a political base
and gradually through a legal one, has not been an easy task. John Vincent has stressed the
tension which exists between human rights considerations and other national objectives.
Indeed, there has been a long debate between scholars of international relations concerning the
relationship between human rights and foreign policy. The realist view in international theory is
that human rights, or other such ethical considerations, should not be determinants of foreign
policy-making. R. J. Vincent, on the contrary, supported the view that human rights
considerations had a legitimate position on the foreign policy agenda and could indeed be
successfully integrated in a country’s foreign policy. This paper wishes to present the
development of a human rights foreign policy by the European Union and its Member States.
This policy has been particularly evident since 1989 because of the global changes and the
Treaty of the European Union which set the provisions for the development of a Common and
Foreign Security Policy (CFSP) where human rights have a central position. Finally, EU
institutions have persisted in initiating and implementing programs and policies in third
countries aiming to improve the protection of human rights and fundamental freedoms.

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Human Rights and Tensions in International Relations

1. Identifying a place for human rights in International Relations

Until the end of the Second World War, human rights had no distinctive place in international
relations, as the principle of non-intervention in international law epitomized (Lillich, 1993,
p.559).1 Individuals were considered qua citizens of a given State in international law. After
1945, however, individuals were protected by international law qua single human beings
(Cassesse, 1994, pp.288-289). This resulted from the shock of the gross human rights
violations which had occurred during the two World Wars and the belief that international
peace required the promotion and protection of fundamental human rights and freedoms.

In effect, through the creation of the United Nations, human rights made their way into
international relations. The UN Charter provided the basis for the improvement of the
international protection of human rights. Both the Preamble and Article I in particular, affirm
that the UN members will co-operate in order to promote respect for fundamental freedoms
without distinction as to sex, race, language, or religion.2 The 1948 Universal Declaration on
Human Rights set new standards in international relations and provided a dynamic platform for
the development of international human rights law. Although it is not a legally-binding
instrument, it represents a ‘common standard of achievement for all people and all nations’,
and the General Assembly proclaimed it a de facto code of human rights (Martenson, 1990,
p.1). The UDHR has an unquestionable political significance and the major world conferences
of the 1990s reinforced its position as a declaration of the existing general international law -
whether it is regarded as customary international law or as principles of law recognized by
civilized nations (Brandtner & Rosas, 1998, p.475). Certain provisions have been described as
representing elementary considerations of humanity3, and in effect, in the latter part of the
twentieth century, human rights have been referred to as ‘a new standard of civilization’ and
respect for fundamental human freedoms has become a factor determining the international
legitimacy of regimes (Donnelly, 1998, p.23).

The UN system gradually consolidated the international protection of fundamental rights and
freedoms through standard-setting and creating international instruments with monitoring
responsibilities. Internationally binding treaties include the 1948 Genocide Convention; the
1952 Convention on the Political Rights of Women; the 1957 Standard Minimum Rules for the

1 Traditional international law accepted intervention only if a state mistreated its own nationals in a way ‘so far
below international minimum standards as to shock the conscience of mankind.’
2 Article 55 states that the UN shall promote higher standards of living and conditions of economic and social
progress and development, and Article 56 states that all Members pledge ‘to take joint and separate action in
co-operation with the Organization’ for the achievement of the principles of Article 55. The provisions of
Article 56 have been interpreted as constituting legal obligations. Even though this legal obligation is general
in provenance, the Charter explicitly places responsibility on the Members in cases of gross violations of these
provisions (Brownlie, 1998, p.574).
3 ‘Considerations of humanity’ may be related to human values already protected by positive legal principles
and are connected with general principles of law and equity. They are part of preambles, UN General Assembly
resolutions and diplomatic practice (Brownlie, 1998, pp.27-28, 575).

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Treatment of Prisoners; the 1965 Convention on the Elimination of All Forms of Racial
Discrimination; the two 1966 International Covenants4; the 1984 Convention Against Torture
and other Cruel, Inhuman or Degrading Treatment or Punishment, and the 1989 Convention
on the Rights of the Child. The UN has a number of committees and working groups involved
with monitoring compliance with specific treaties, examining States’ reports and in certain
cases individual communications (i.e. the Human Rights Committee, the Committee on the
Elimination of Racial Discrimination, the Committee against Torture, the Working Group on
Indigenous Populations, etc.). The successive adoption of these numerous instruments and
treaty-bodies has suggested that human rights have acquired their own dynamic (Hannum,
1992, p.17).5 Also, at the regional level, growing concern for human rights led to the 1953
European Convention of Human Rights (ECHR), the Inter-American Commission on Human
Rights in 1960, the American Convention on Human Rights in 1978, and the entry into force
of the African Charter on Human and Peoples’ Rights in 1986.

The principle of human rights implies that every individual has rights. However, the issue of
determining the location of the duties which correlate to human rights has led to attempts for
various group rights within different categories which have ended up being antagonistic to one
another. First generation rights define certain limits to state powers and are known as
'freedoms from' since non-intervention on behalf of the state is required for their fulfillment
(Haarscher, 1991, p.38).6 The West supported the supremacy of civil and political rights as the
essential protections for an individual or a group to lead a dignified life protected from state, or
other arbitrary violations, and of the western democratic and liberal system. The second
generation of human rights -- economic, cultural and social rights, also referred to as
'freedoms to' (Haarscher, 1991, pp.11-12, 39-41)7 -- conversely require state involvement and
state action.8 This category of rights, advanced by the Soviet Union and the Third World, gave
precedence to socio-economic and cultural rights, the right to self-determination, the right of
equality, and consequently, the prohibition of discrimination, especially racial discrimination

4 In 1966, the Third Committee of the General Assembly adopted the International Covenant on Economic,
Social, and Cultural Rights (135 parties in 1998), the International Covenant on Civil and Political Rights (136
parties in 1998) and the Optional Protocol to the ICCPR (89 parties in 1998). These Covenants, which consist
of a detailed codification of human rights, came into force in 1976 and have legal force as treatis for the parties
to them (Brownlie, 1998, pp.576-578).
5 Keohane and Goldstein ((eds.),1993, p.20) have defended the view that: “Once ideas have influenced
organizational design, their influence will be reflected in the incentives of those in the organization and whose
interests are served by it.” Respect for human rights and fundamental freedoms were among the basic principles
upon which the UN Charter was based (Preamble, Chp.1: Art.1§3); therefore, it may be assumed that the idea
of human rights influenced the organizational design of the UN and its institutions which have subsequently
promoted respect for human rights in their initiatives and in their policies.
6 This includes the right to life; freedom from torture, inhuman or degrading treatment or punishment; right to
respect for private life, family home, correspondence; and freedom of expression.
7 Second generation rights include education, employment, social security, form and join trade unions, work for
just pay, periodic holidays with pay. They have led to the development of the Welfare State.
8 Human rights have also been categorized as negative rights (i.e., the subject may pursue certain activities
within a secured space without any outside interference) or positive rights (i.e., outside interference is expected
and must be fulfilled).

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(Cassesse, 1994, p.301). Third generation rights include the right to peace and security, the
right to development, the right to a fair and just international order, and to a healthy
environment (Cassesse, 1994, pp.310-311).

States have become parties to international human rights agreements (UN declarations,
international covenants, regional conventions) and to supervision under these agreements (such
as for example, the UN Commission on Human Rights and the Commission of Human Rights
of the Council of Europe). The protection of fundamental rights and freedoms has become
anchored in international customary law, and in international and regional treaties and
conventions (Vincent, 1986(a), p.130). Although governments are the main violators of human
rights, they also remain the best placed for guaranteeing their respect since sovereign nation-
states still constitute the basis of international relations and remain the principal actors of
international law (Mahoney & Mahoney (eds.), 1993, p.50; Cassesse, 1994, p.9). The 1993
Vienna Declaration adopted by the UN World Conference on Human Rights stated that the
protection and promotion of human rights is the primary responsibility of governments and a
legitimate concern of the international community (Beetham (ed.), 1995, pp.62-75). Thus,
while state sovereignty remains protected, state authorities are held internationally accountable
for human rights violations. Antonio Cassesse underlined the impact that human rights law has
had on the international community (1990, pp.161-162).9 Expecting every state to respect
certain fundamental standards relating to the dignity of the human being requires every state
periodically to furnish proof to other nations and international institutions of how it treats its
citizens. Today, in principle, each state is expected to make itself transparent in this domain,
and has thereby accepted external interference in this aspect of its internal affairs.

Although human rights may render diplomatic relations difficult, it appears that since the
Second World War they have made their way on the foreign policy agenda. Furthermore, there
has been a proliferation of democracy and respect for human rights. In the last three decades,
dictatorships collapsed in Europe (Greece, Spain and Portugal); Communist rule fell in Eastern
Europe and in the Soviet Union; apartheid ended in South Africa; and some states in Asia are
moving towards democracy (Taiwan, South Korea). Realists preoccupied with the risks of
human rights in foreign policy should consider the cases of Vaclav Havel and Nelson Mandela,
where political prisoners became state presidents. “In such a climate, faith in the spread of
human rights and willingness to give it a helping hand may not be a liberal illusion - it may be
realistic.” (The Economist, 12.04.1997, p.25)

2. Tensions: Theory and Practice

Regardless of the ideological context within which debates on human rights take place, and in
spite of the categorization of human rights and fundamental freedoms, humans are entitled to
the entire scope of these rights because ‘they are not members of this or that society, but of the

9 The right to self-determination weakened the principle of non-interference: ‘states have had to look beyond
the narrow confines of their own frontiers and national interests (...) People can now intrude on the cosy,
bilateral relations of states.’

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community of humankind.’ (Vincent, 1986(a), p.9) Although respect for human rights is a
declared concern of the international community and an international system of protection of
human rights has been set up, its implementation and enforcement is far from being effective.
Human rights, however, have substance when the holders of these rights are able to enjoy their
protection and this still remains within the realm of the state and its policies. Progress toward
the full enjoyment and enforcement of human rights is not possible without the compliance of
the states to the internationally agreed human rights standards and without the promotion of
these rights and freedoms in their policy-making, whether this involves their internal
jurisdiction or their foreign policy making.

There has been a long standing debate about whether ethical considerations, such as respect for
human rights, can be integrated in foreign policy-making. Foreign policy involves a state’s
activity towards its external environment and is formulated by domestic and external conditions
(Beetham (ed.), 1995, p.89). What place do human rights have in foreign policy? The inclusion
of ideals, moral considerations and principles in inter-state affairs is frequently seen as a
constraint on otherwise profitable relations.10 Nevertheless, human rights, justice, and fairness
have a part in the conduct of relations within the international community R. J. Vincent in
particular, noted the importance of including human rights despite potential security tensions
or trade concerns:

“...international law of human rights suggests that foreign ministers no longer


have a choice about the inclusion of human rights. They cannot escape the
tension between human rights and foreign policy simply by declaring that the
former have no place in the latter. They are obliged to pay attention to human
rights whether they like it or not.” (Vincent, 1986(a), p.130)

Non-interventionism, friendly relations, and the maintenance of peace and stability are
principles enshrined in the UN Charter -- as is the protection of fundamental human rights and
freedoms. Since the state remains the principle actor on the international scene, it follows that
it is the duty of the state to ensure the protection of these rights.11 At the same time, human

10 Realists in particular oppose the inclusion of human rights considerations in foreign policy because this
would ‘risk interference’, it would ‘disrupt international order’ and ‘hinder the pursuit of other national
interests’. Furthermore, inconsistencies in the application of human rights considerations risk to question the
credibility of a government’s policies. Finally, according to cultural relativists, the promotion of human rights
or sanctions of their abuses assume the universal superiority of these moral values, and are, therefore, criticized
of imperialistic tendencies. For further reading on the realist position see Morgenthau, 1993; and on cultural
relativism see Steiner & Alston, 1996; Pollis & Schwab (eds.), 1979; Beetham (ed.), 1995.
11 John Locke’s theory on the social contract argues that humankind surrendered to the state only the right to
enforce these natural rights, and not the rights themselves. (See Steiner & Alston, 1996, p.167-168). According
to the Western view, if a state is violating its people’s rights, then it is disassociating itself from the basis from
which it received its powers; this disassociation would lead to a loss of legitimacy on behalf of the government
since it would no longer represent its people nor express their will. Since the end of the Cold War, there has
been increased acceptance that when a state severely infringes human rights, then the UN has a right and duty
to intervene to protect these freedoms. (See Lillich, 1993, p.558.) However, reference to ‘the will of the people’
presumes a democratic government, yet international law does not require a government to be democratic
(Crawford, 1993, p.7-8). Nevertheless, Western democracies render aid and assistance conditional to respect for

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rights remain subject to the state-centric international structure: international human rights law
is drafted by the states; then the state authorities must expressly consent to the obligations of
the drafted treaties by ratifying them, and opt in or out of international monitoring mechanisms
or the jurisdiction of international courts; and finally, for the protection of human rights to be
effective, each state is required to make these rules part of its domestic legal system, and then
implement them (Hannum, 1992, pp.3-14). Consequently, the inclusion of human rights in
foreign policy is an aspect of a government’s duties, and a necessary consideration in inter-
state relations.

The confrontational system of the Cold War period brought human rights into the political
debate. In fact, the disagreements between East and West concerning the foundations of
human rights, which rights have priority over others, and whom these rights belong to
conditioned and shaped the human rights policy of each side and influenced their respective
human rights policies during the Cold War years.12 The tension between human rights and
policy-making in East-West relations existed between the principle of promoting human rights
and the principle of non intervention, as well as between the pursuit of human rights
considerations and other realpolitik foreign policy objectives.

The East-West human rights tensions can be best represented with the Helsinki Final Act and
the follow-up conferences in Madrid (1980-1983) and Ottawa (1985). Within the
CSCE/OSCE, context the European states expressed their support for the view that the
principles of sovereignty and non-intervention do not constitute a barrier to international
concern for the respect of human rights and fundamental freedoms. This was materialized in
the Helsinki Final Act in 1975 where Principle VI on non-intervention in internal affairs,
enjoyed equal status with Principle VII on respect for human rights, including the right to
freedom of thought, conscience, religion or belief (UN, ST/HR/1/Rev.5, Vol. II, 1997, pp.371-
374). Thus, in the Western European view, non-intervention did not hinder monitoring and
reporting on human rights, or using influence to ‘improve’ them. This was supported by a two-
fold reasoning: first, that human rights were a matter of international concern based on the
existing conventional and customary law on human rights referred to in the Final Act; second,
that in the classical interpretation of international law, ‘intervention’ refers to ‘dictatorial
interference’ which sought to coercively subordinate the exercise of sovereign rights to foreign
interests, and thus, concern for human rights violations does not constitute an act of
illegitimate interference (Vincent, 1986(a), pp.66-67). The western governments indeed
concentrated on the human rights provisions of the Final Act, and in particular those relating to
civil and political rights, since they assumed that the spirit of détente consisted of a new style
of international relations where human rights could be connected to trade and security
concerns. This was perceived by the Soviet Union as an illegitimate and hostile interference by
the West in its sovereign jurisdiction, as well as an exploitation of détente for the purposes of
psychological warfare, and it thus opposed any form of western interference with the process

human rights and democracy. Democracy implies a range of rights (freedom of speech, participation in public
life, free, fair and periodic elections) which are not always enforced by these third countries, due to political,
religious, or ideological reasons; in this case, it has been argued that conditionality on these rights is an
unlawful intervention in internal affairs (Crawford, 1993.).
12 For more on human rights and East-West relations, see Vincent, 1986(a), pp.61-75.

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of implementing human rights in the USSR or Eastern Europe (Vincent, 1986(a), pp.66-69).
Hence, human rights in East-West relations have been described as a ‘minefield’ and, therefore,
hesitations were raised as to whether pursuing a human rights foreign policy was desirable. In
fact, there were concerns that such a policy could either lead to the opposite of what was
intended (i.e. increase a régime’s oppression of a minority which is seen as a ‘stooge’ of
foreign interests), or could complicate the achievement of other foreign policy goals (such as
the maintenance of stability). R. J. Vincent refutes these arguments by explaining that although
prominence given to human rights in foreign policy may lead to the intensification of
oppression, in the longer run this may give place to reform, and that in any case it is the cause
which merits support, not the likelihood of its success (1986(a), p.74). Vincent also argued
that concerns for stability were an excuse rather than a reason to not include human rights
considerations as objectives of foreign policy, since the capability of mutually assured nuclear
destruction had stabilized the strategic relationship between East and West. Finally, concerning
the ideological disagreement between the two sides, Vincent had suggested detaching the issue
of human rights from the ideological debate and concentrating instead on the even-handed
support of human rights cases (1986(a), p.88).

The process of decolonization and the arrival of the South in international relations also made
the human rights debate prominent both within the UN and in the content of North-South
relations. The Third World condemned colonialism and all forms of discrimination,
emphasized the right to self-determination, to social, economic and cultural development and
accorded primacy to basic collective needs rather than to individual rights (Vincent, 1986(a),
p.88). The human rights concerns of the South, relating to the right to subsistence and along
with the debate on universalism versus cultural relativism, introduced a new challenge in
international relations. Thus, economic development and its relation with human rights and
fundamental freedoms became a basic preoccupation of the North’s development co-operation
policies and development assistance policies (Bossuyt, 1990, pp.27-33; Boutros Ghali, 1990,
pp.35-46). This led to an additional tension in foreign policy-making. Whereas an efficient
development co-operation policy is conducive to the realization of economic and social rights,
the use of development assistance as a sanction against human rights violations has been
opposed as being a moralistic and selective policy which further penalizes a population already
suffering an oppressive régime (Beetham (ed.), 1995, pp.86-87).

The process of including human rights considerations in government policy-making was


provided with added impetus with the end of the bipolar system, and human rights have today
been recognized as a major element influencing international relations and the evolution of
international law (Mahoney & Mahoney, 1993, pp.51-53; Robertson & Merrills, 1996, pp.1-2).
For example, UN intervention in Iraq (1991-1993), Somalia (1992), Liberia (1991-1992), and
the former Yugoslavia (1992), exemplified the trend in international law to consider human
rights violations as a threat to international peace and security, thus justifying humanitarian
intervention to protect the fundamental rights of the people (Greenwood, 1993, p.4). At the
same time, the dismantling of the antagonistic bipolar system was welcomed in Europe and
within the CSCE process as an opportunity to overcome the economic, social and political
instabilities and build democratic and pluralistic societies. The European Community and its

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Member States undertook a leading role in Europe to further strengthen and implement this
objective (Regelsberger, de Schoutheete de Tervarent & Wessels (eds.), 1993, pp.723-727).

Before examining the human rights aspect of the European Union’s foreign policy, whether in
the context of its external economic relations, its CFSP or its development co-operation
policies, it is important to understand why human rights received an increasingly privileged
position in the documents, declarations and actions of the Union and its Member States with
the end of the Cold War.

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The EU’ s Human Rights Foreign Policy

1. The causes

The strengthening of the EU’ s and its Member States’ foreign policy, and in particular of it
human rights aspect, can be attributed to a series of exogenous and endogenous factors. First,
the end of the Cold War, and the ideological opposition between the two blocs, marked a
change in values within international relations. The transformed nature of international power
relations allowed for Europe to pursue a more independent position, distanced from the
previous superpower nuclear logic obligations. Second, with the East-West divide gone, the
EC/EU could pursue conditional development co-operation policies toward Third World
countries with greater ease. It has indeed been argued that the international changes in the
post-Cold War years allowed the West to identify respect for human rights, democracy and the
rule of law as essential preconditions to economic advancement, and to render assistance to the
Third World conditional upon these (Mahoney & Mahoney (eds.), 1993, pp.723-727). Third,
the end of the Cold War posed a unique opportunity for the Community to help the countries
of Eastern and Central Europe to develop economically and democratically and to foster ‘a
genuinely all European integration’ (Dinan, 1994, p.466). Following these changes in Europe,
the re-unification of Germany was another endogenous cause which pushed for greater
integration. European leaders, including the Germans themselves, wanted to ‘tie’ Germany
further into Europe and, hence, greater economic and political integration was perceived as
necessary (Nugent, 1994, p.393). The fourth element which encouraged the EU Member
States to move closer towards a common approach in their foreign policies and external
relations is related to immigration. With the coming into force of the Single European Market,
the free movement of people between the EU Member States became an important issue. This
awakened awareness in the need to co-ordinate immigration and asylum policies, but also to
attempt to address the root causes of immigration and refugee waves from outside the EU by
promoting human rights, democracy, and the rule of law, and creating conditions conducive to
sustainable development and market economies, thereby decreasing the potential number of
people wishing to enter the EU from any of its external borders.13 This appears to confirm R.
J. Vincent’s explanations in support of including human rights considerations in policy-
making:
“one of the reasons for states to be interested in the human rights record, not
merely of a neighbor but of another state across the globe, is the interest it has

13 Four million people emigrated to Western Europe from the Balkans and Eastern Europe during the first half
of the 1990s. The massive migration from the CEECs and the dismemberment of the Soviet Union and
Yugoslavia, along with the subsequent civil and ethnic wars which broke out in the early 1990s led to one of
the largest mass movement of people since the end of the Second World War. The Schengen Agreement
between certain EU Member States, intended to co-ordinate immigration control and police procedures between
the signatory countries. Unfortunately, this also meant a ‘putting up of shutters’ and led to the EU’ s “Fortress
Europe” policy. EU immigration policies have failed to halt the influx of illegal immigrants, and have led to
the increase of temporary leave to remain and temporary asylum status. This has raised concern among human
rights NGOs who are concerned with the erosion of the protections and guarantees of the permanent refugee
status (The Guardian, 20.10.1998). The human rights implications of this restrictive European refugee policy
do not fall within the scope of this paper, but for further reading, refer to Hill(ed.), 1989, pp.131-181; and van
der Klaauw J., (September 1997, pp.365-375).

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in not suddenly being made a receiver of numbers of unmanageable
refugees.”(Vincent, 1986(a), p.106)

Finally, the institutional input must be considered as a significant factor encouraging the
extension of Community competence into external relations. The Treaty on European Union’ s
(TEU) enlargement of the scope of the European Parliament’ s (EP) and the Commission’s
powers led to greater assertiveness on behalf of these institutions and to their increased
commitment to the development of an integrated human rights policy, combining proactive and
reactive measures, in the Union’s external economic relations, its CFSP, and its development
co-operation policies (Nugent, 1994, pp.395, 403).

2. The foundations and objectives

The process of European integration immediately following the Second World War was
primarily concerned with economic reconstruction and co-operation. The founding treaties
(Treaty of Paris of 1951, and Treaty of Rome of 1957) made no reference to a common
foreign policy, nor to a ‘human dimension’ in their external relations.14 Gradually, however,
the EU Member States recognized that they shared a common values system and that respect
for human rights was a fundamental element of the European identity.15 Nevertheless, there
was no legal basis within the EC Founding Treaties upon which to develop and external human
rights policy.

From the initial stages of the EC/EU’ s political co-operation to the creation of the provisions
for a common foreign policy, human rights have increasingly influenced policy-making of the
EU and its Member States. Considerations for respect for human rights and democracy
developed gradually as a repercussion to the growing economic and commercial powers of EC
institutions, and to the increasing presence of the EC/EU in international affairs (Fouwels,
September 1997, p.291). Throughout this development, the EU gradually adhered to the
definition of human rights which supports their universal, indivisible and inter-dependent
character (COM(95)567final, 22.11.1995, pp.7-8, 10):
“universality, which implies that no provision of a national, cultural or religious nature can
override the principles enshrined in the Universal Declaration of Human Rights”,
“indivisibility, which precludes discrimination between civil and political rights, and economic,
social and cultural rights”,16

14 For details on the evolution towards EPC see Dinan, 1994; and European Political Co-operation (EPC),
1988, p.14.
15 A series of declarations affirmed the importance of democracy, human rights, and the rule of law. For
example the Declaration on European Identity (Copenhagen 14/15.12.1973); the European Council’s
declaration on democracy (08.04.1978); the Solemn Declaration on European Union (19.06.1983); the EP’s
resolution on human rights and fundamental freedoms (12.04.1989).
16 Indivisibility does not allow the hierarchization of human rights. However, it has been suggested that it is
easier to hold authorities accountable for violations of political and civil rights -- this is harder to achieve with
economic rights, where international factors necessarily influence the internal situations of employment,
standard of living, etc. (PE 222.307, 29.04.1997, p.14).

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“interdependence between human rights, democracy and development, which is linked to a new
definition of development focused on man as a holder of human rights and the beneficiary of
the development process.”

According to the Council, the human rights foreign policy which has been pursued by the
EC/EU throughout EPC and CFSP has attempted to be consistent, sensitive to the
particularities of the third countries and that suspension of co-operation or adoption of
sanctions have only taken place as a last resort (PESC51, 5468/96, 19.06.1996, p.14).

Throughout the history of European Political Cooperation (EPC) and despite the lack of a
concrete legal basis, the EU repeatedly confirmed its commitment to the improvement of
human rights. Especially in the context of the CSCE, EPC -- with significant input from the
Commission -- forged a united position which influenced the Conference’s development and
ensured that the Final Act included both a trade policy agreement and a human rights aspect
(Regelsberger, de Schouttheete de Tervarent & Wessels (eds.), 1997, pp.20, 24). With the
exception of a short interlude of a period of inaction in EPC, as in the case of the invasion of
Afghanistan in 1979, the beginning of the 1980’s saw greater EPC activity and willingness of
the Member States to use Community instruments to enforce common foreign policy decisions.
For instance, economic sanctions were applied to the Soviet Union (following the Martial Law
in Poland in 1981) based on a Council Regulation, and to Argentina (following its invasion of
the Falkland Islands) based on Article 113 of the EC Treaty and subsequent to the
Commission’s proposal to apply the instruments of the EC’s common commercial policy
(Regelsberger, de Schouttheete de Tervarent & Wessels (eds.), 1997, pp.21,32). Hence, the
rigid separation which had existed between Community matters and EPC affairs was toned
down. Finally, the EPC’ s combination of economic sanctions and positive measures (managed
by the Commission and aimed to assist the victims of apartheid) in South Africa in the mid-
1980’s, marked the beginning of ‘conditionality’ and the willingness on behalf of the EC
Member States to include human rights considerations in EPC (Regelsberger, de Schouttheete
de Tervarent & Wessels (eds.), 1997, pp.36-37).

With the 1986 Single European Act, the possibility of a future political union started taking
shape,17 yet reference to the protection and promotion of human rights and democratic
principles was more of a political than of a legal nature -- it was limited to the declaration of
the Member States’ awareness of their responsibilities to increasingly speak with one voice on
these matters in the Preamble of the SEA (Fouwels, September 1997, p.293). On 21 July 1986,
the Twelve Foreign Ministers declared their commitment to the universal observance of human
rights and highlighted the duty of the international community to ensure their protection. As a
result, institutional improvements were made to begin the co-ordination of the Member States’
foreign policies which would promote human rights (EPC, 1988, pp.263-265). For instance,
human rights matters increasingly appeared on the EPC Ministers’ agenda and a Special
Working Group on Human Rights was established after 1987 to assist the Political Committee
with these issues.

17 The SEA, provided political co-operation with a legal basis and officially linked it with the Community
institutions in its Titles I and III; however, the EPC remained an intergovernmental decision-making body.

12
The Luxembourg European Council of 28-29 June 1991,18 and the Development Council of
Ministers of 28 November 1991,19 may be considered amongst the most crucial moments in
the establishment of the EC’s external policy on human rights. These two Councils set the
guidelines, priorities and criteria for such a policy. They identified the possible instruments and
distinguished short, medium, and long term objectives -- in short they outlined the principles of
conditionality in economic co-operation agreements and established the principles for a
consistent human right strategy that the EC should follow in the international community. The
significance of the 28 November Resolution, in particular, is in that it ‘confirms the
relationship’ between human rights, accountable government, and development, and in that it
‘comprehensively defines the relationship’ to include both proactive and reactive measures in
order to address the problems associated with development co-operation. Thus, this
Resolution ended the traditional tendency to marginalise human rights considerations from
development co-operation (Marantis, Spring 1994, p.2).

The TEU formally set the framework for the protection of democracy and fundamental rights
and freedoms, by stating that their respect was a condition for membership and a basic aim of
Community integration (EP, 1994, p.7). The Member States committed themselves to
undertake common actions and decisions to consolidate the Union's identity in the international
arena, to safeguard its common values and independence, and to preserve international peace
and security (TEU, 1993, Art.F(2), J.1, 130u(2)). Furthermore, Title V of the TEU, article
J1(2) in particular, provided a strong legal base for the promotion and respect of human rights
by stating that the EU would elaborate a CFSP, whose objectives would be to develop and
consolidate democracy, the rule of law, and respect for human rights and fundamental
freedoms.

The nature of the human rights and fundamental freedoms referred to in Art.J1(2) of the TEU
is, however, not specified. It is in Article F2 of the Common Provisions that further
explanation is provided on the rights and freedoms which the Union respects and promotes and
allows for the ECHR to serve as a source of guidance for the CFSP.20

The defense and promotion of human rights in the EU’ s external relations fall within the
content of the principles enshrined in the UN Charter and the Universal Declaration of Human
Rights (UDHR), supplemented by the two additional international covenants - the International
Convenant on Civil and Political Rights (ICCPR) and the International Convenant on

18 The Declaration on Human Rights (29.06.1991) framed the policy of human rights conditionality on
economic and trade agreements.
19 The Resolution on Human Rights, Democracy and Development (28.11.1991), included guidelines,
procedures, and methods of action for the EC's human rights and development policies.
20 The Common Provisions apply to all three pillars. However, Article L of the TEU’s Final Provisions
specifies that the ECJ’s jurisdiction is excluded from all articles in the Common Provisions and of Title V. The
exclusion of a supervisory role of the ECJ in CFSP limits the human rights aspect of the Union’s foreign policy.
The role of the ECJ is nonetheless not completely excluded from the Union’s external relations since it could be
asked to pronounce itself on the legitimacy of the use of trade instruments and of the use of the Community
budget for foreign policy and human rights purposes (Fouwels, September 1997, pp.294-295).

13
Economic, Social, and Cultural Rights (ICESCR).21 Under these principles, states have an
erga omnes obligation (Cassesse, 1994, p.314),22 and are expected, in principle, to strive to
secure universal and effective recognition and observance of human rights. The integration of
these principles into concrete policies, however, requires the acceptance by either side of the
same basic notions and principles (van der Klaauw, March 1996, p.97), and is based on good
faith, good governance requirements and the observance of the rules of partnership.23 Hence,
the inclusion of human rights in agreements between countries, requires the existence of
mutually acceptable standards.

A policy which includes human rights clauses in external agreements creates political and legal
commitments on both sides (van der Klaauw, March 1996, p.100). In principle, the EU’ s
human rights foreign policy is designed to show the advantages of developing a society where
human rights, democracy and the rule of law are respected; it aims to encourage the countries
recipient of EU aid to undertake these changes on their own initiative.

3. The policies

In 1995, the Commission declared that:


“the different ways of expressing concern about violations of rights, as well as
requests designed to secure those rights, cannot be considered as interference in
the internal affairs of a State, and constitute an important and legitimate part of
their dialogue with third countries.” (COM(95)567final, 22.11.1995, p.10)

The strengthened, more assertive human rights policy that the Union was declaring manifested
itself both in the actions and positions supported by the EU Member States in international
fora and organizations, and in the Union’s external economic relations, development co-
operation policies, and CFSP.

Throughout the 1990s, the EU Member States have increasingly co-ordinated their positions
and the implementation of their actions within international organizations and conferences.24 If
under EPC, the Member States had attempted to co-ordinate their positions within
international organizations involved in human rights, this attempt was further facilitated by the
mechanisms created in the TEU. Indeed, the Union, under the representation of the Presidency
of the Council, has contributed to UN conferences seeking to reaffirm the principles of
21 COM(96)672 final, 17.01.1997, p.5. (i.e. the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights).
22 Human rights rules ‘are not only binding on all States belonging to the international community, whether
they have ratified conventions on the subject or not, but they also impose erga omnes obligations, as has been
stressed by the ICJ. Moreover, some of them have also acquired the status of jus cogens.’ For the ICJ ruling,
see the Barcelona Traction case, and for jus cogens §96, pp.175-179.
23 Council Resolution on Human Rights, Democracy and Development, 28.11.1991, (§ 4)
24 For example: June 1993 Vienna Conference on human rights; September 1994 Cairo Conference on
population; March 1995 Copenhagen Conference on social development; and September 1995 Beijing
Conference on women.

14
universality and indivisibility of human rights. In particular, the Commission has emphasized
the EU’ s input in the 1993 UN World Conference on Human Rights, in the appointment of the
UN Commission on Human Rights, and in the establishment of the International Tribunals for
the former Yugoslavia and Rwanda in The Hague (van der Klaauw, March 1996, p.73). The
Union's activities have extended to operations such as the dispatching of human rights
monitors to assist the UN High Commissioner for Human Rights in Rwanda
(COM(95)567final, 22.11.1995, p.9). The EU has also been in the forefront of developments
at the regional level; its participation in the OSCE and the Council of Europe has supported
their work and initiatives. For example, Council of Europe membership is an implicit
prerequisite for EU membership (COM(95)567final, 22.11.1995, p.8).

In the context of the Union’s external economic relations, the instruments of the EC’s common
commercial policy (trade agreements negotiated on the basis of Article 113 of the EC Treaty)
have been used to sanction human rights violations, and trade and economic co-operation
agreements (based on Article 228 of the EC Treaty) have been based on ‘political
conditionality’ since the 1980s. Human rights references have been inserted in all EC
contractual relations with third countries; the TACIS (with the former USSR and Mongolia)
and MEDA Regulations are illustrative. Finally, association agreements (negotiated on Article
238 of the EC Treaty) have been increasingly used since the early 1990s as the central
mechanism for forging closer relations between the EU and the CEECs, and for promoting
political democratization, pluralism and economic liberalism (Nugent, 1994, pp.385-386).

In the sphere of EU development co-operation policies25, such as the Lomé Conventions,


human rights have had a particularly significant role since the late 1980s. Prior to that,
democratic principles and fundamental rights and freedoms were marginal concerns of the
Community’s development co-operation policies. Indeed, the most institutionalized form of
development co-operation can be found in the successive Lomé Conventions.

Lomé I and II included no reference to human rights, but the disappointing results of the
Community’s development policies in the ACP states led the European policy-makers to
redefine Lomé in order to address the root causes of underdevelopment. A number of reasons
have been put forth to explain the lack of human rights references in Lomé I and II: first, the
EEC was an economic association and its relations with the ACP countries were based on
contractual obligations where political or human rights considerations were marginal; second,
there was reluctance on behalf of the Europeans to criticize newly de-colonized nations; third,
economic conditions favored the ACP’ s bargaining position in the late 1970s and they strongly
opposed conditionality on economic agreements as neo-colonialist attempts (Marantis, Spring
1994, pp.3-4). Hence, the EC failed to respond effectively to continuing human rights abuses
as for instance, in Uganda and later in Ethiopia (Marantis, Spring 1994, p.7).

25 General assistance toward the Third World concerning economic development, the strengthening of the civil
society and humanitarian aid has principally taken the form of the Generalised System of Preferences (GSP),
food aid, emergency aid, and aid to NGOs.

15
Reference to fundamental rights was first included in a declaration attached to Lomé III in
1982, whereby the EEC and ACP countries affirmed their ‘deep attachment to human
integrity’ (PE222.307, 29.04.1997, p.12). Even though both the Preamble and Article 4 of
Lomé III explicitly included the promotion of human rights as an objective of development co-
operation, the Community and its Member States failed to successfully implement these
objectives in practice. In the early 1980s, the return of international relations to a highly
confrontational Cold War spirit, led to increased Western support for ‘friendly’ anti-Soviet
régimes irrespective of their human rights records. However, the international changes of the
late 1980s, with the return to East-West détente, the economic collapse of many ACP states,
their growing dependence on foreign aid and consequent loss of their bargaining power, and
the spread of democratic movements throughout the developing world, coincided with an
increased European concern for the respect and advancement of the triptych ‘democracy, rule
of law and fundamental freedoms’ and, hence, led Lomé IV to support decentralized aid
distribution as a means of strengthening the role of grassroots organizations in the preparation
and implementation of development programs and to the adoption of a human rights clause
(Marantis, Spring 1994, p.9).

Lomé IV included a human rights clause (Article 5) which explicitly linked the promotion of
human rights to development. Despite the importance of Article 5, it had two shortcomings.
First, it paid little attention to political and civil rights, and second, it provided no legal base for
sanctions in the case of human rights violations. Nevertheless, since respect for human rights
and democratic principles became an ‘essential element’ of EU relations after 1990, the
Commission suspended Lomé programs based on the ‘spirit’ of article 5 (PE222.307,
29.04.1997, p.20). This was the case for Sudan in March 1990, Somalia in January 1991, and
Togo and Zaire in January 1992.

The 28 November Resolution took the objectives of Article 5 a step further and transformed
the Community’s development policy. This Resolution endorsed both a positive (proactive
measures) and a negative (graduated reactive responses) approach to linking human rights and
democracy to the development process. It restated the indivisible nature of fundamental rights
and freedoms, and recognized the importance of fostering ‘democracy’ and ‘good governance’
in development, and of decentralized funding. Finally, it applied political conditionality to its
worldwide development co-operation policy (i.e., not just limited to EC-ACP relations), and
represented an agreement in principle of the Member States to co-ordinate aspects of their
individual development policies (Marantis, Spring 1994, pp.10-11).

The mid-term review of Lomé IV provided the opportunity for the EU to introduce a
suspension element to the human rights clause (Article 336a) in order to ensure a legal basis
for its actions and to enable a consistent policy on conditionality (PE222.307, 29.04.1997,
p.13). According to this suspension clause, if certain conditions relating to human rights
standards are not upheld by the contracting parties, then the agreements or parts of the
agreements can be suspended - in particular aspects relating to financial and technical

16
assistance.26 EU development policies no longer attempted to be neutral, and the concept of
development was not limited to economic growth, but connected it to respect for equality,
satisfaction of basic needs, and self-reliance, the attainment of all human rights, and ultimately
the fulfillment of human potential (Forsythe, 1989, pp.213-215). This approach to
development was again confirmed in the Treaty of Maastricht. Paragraph 2 of Art.130U in
Title XVII (TEU) stressed that development co-operation policy should “contribute to the
general objective of developing and consolidating democracy and the rule of law, and to that of
respecting human rights and fundamental freedoms.”

Under CFSP, the EU and its Member States have a variety of instruments at their disposal to
implement the promotion of human rights. These range from unilateral instruments such as
declarations, confidential or public démarches, to the more recently created autonomous
instruments such as common positions and joint actions, although the use of the latter two still
remains limited (Fouwels, September 1997, pp.298-300).27 In addition, economic sanctions
have been explicitly referred to as instruments of foreign policy in the TEU (on the basis of
Article J2 combined with Article 228). Since the TEU, the Union has initiated sanctions under
CFSP for human rights motivations either independently (for example, the arms embargo
against Sudan in March 1994 and the reinforcement of sanctions against Nigeria in November
1995), or pursuant to a UN Security Council Resolution (for example, economic sanctions on
Haiti in June 1994 and on Yugoslavia also in June 1994). Finally, political dialogue conducted
between the EU institutions and representatives of individual third countries or groups of
countries is another significant instrument through which human rights concerns are promoted
(Fouwels, September 1997, p.301). Indeed, the EU institutions have a number of instruments
through which they can express their concern for human rights situations, or through which
they can actively encourage their improvement. For instance, the EP has a network of
delegations and joint committees (for example, the EU-Turkish Parliamentary Committee)
through which MEPs can raise human rights concerns directly with MPs of third countries
(Fouwels, September 1997, p.314). MEPs also conduct research and produce reports on
individual human rights cases. In this context, the EP’s Sakharov prize for freedom of thought
is an additional method of encouragement for the struggle of human rights activists and for

26 This is in accordance with the 1969 Vienna Convention on the Law of Treaties, whereby a treaty may be
terminated by one of the parties if the other party has not respected certain essential conditions. Since respect
for human rights is an essential condition, if one of the parties were to commit serious human rights violations,
the other party would be able to terminate or suspend the agreement because they would be released from their
treaty obligations (Cassesse, 1994, pp.187-191).
27 A number of common positions with human rights as a principle objective have been adopted since this
instrument was created in the 1993 TEU (Article J2). Examples include the common positions concerning the
objectives and priorities of the EU towards Rwanda (24.10.1994: Decision 94/69/CFSP), Ukraine (28.11.1994:
Decision 94/779/CFSP), or the human rights situation in East Timor (06.07.1996: Decision 96/407/CFSP), and
define the Union’s strategy towards a specific country; joint actions such as the support for the convoying of
humanitarian aid to Bosnia and Herzegovina (08.11.1993: Decision 93/603/CFSP), or the dispatching of a team
of electoral observers for the parliamentary elections in Russia (09.11.1993: Decision 93/604/CFSP), or the
support for the Middle East Peace Process (06.10.1995: Decision 95/205/CFSP) have enabled the Union to
undertake concrete actions.

17
their international recognition.28 The EP has provided the forum for public hearings on human
rights. Amongst the most notable examples are the public hearings on East Timor where Nobel
Prize winner Dr. Ramos Horta was heard alongside Indonesian government representatives, on
Tibet where the Dalai Lama was heard, and more recently on human rights in Romania, Algeria
and Kosovo. In addition, the EP produces general reports on human rights throughout the
world (PE218.638/fin, 28.11.1996, p.52). These reports are important for providing
information on continuing violations, for restating EU commitment to universal human rights
principles, for encouraging firmer action to be adopted by the Union, and for generally raising
public awareness and consequently public concern for these situations. The success EP
resolutions have achieved in specific cases29 such as the release of Hélène Passtoors by South
African authorities in May 198830 merits particular attention. This can be an indication of the
success of EU institutions’ actions, in particular in areas in where UN instruments or regional
mechanisms have proved less successful or appropriate.

Finally, the use of CFSP instruments in the framework of international fora such as the UN
and the OSCE, is a central avenue for the promotion of protection and promotion of human
rights due to the greater visibility, more enlarged support and potentially stronger impact that
resolutions can benefit from in these international organizations.

4. The approach

Political conditionality:
“entails the linking, by a state or international organization, of perceived benefits
to another state (such as aid), to the fulfillment of conditions relating to the
protection of human rights and the advancement of democratic principles.”
(Smith, Summer 1998, p.256) 31

While conditionality clauses may be regarded as the materialization of the developing concern
for human rights throughout the world, human rights clauses, at the same time, encourage and
allow for a stronger and firmer stance for the respect of human rights both within the EU states
and towards states with which the EU has preferential relations. In this way political

28 The 1995 Sakharov Prize was granted the Turk Leyla Zana; the 1996 Prize was granted to the Chinese
dissident Wei Jingsheng. Chinese authorities expressed their indignation with this incident, and described it as
‘an interference in Chinese internal affairs.’ This prize has also been awarded to Nelson Mandela and Anatoli
Marchenko (1988), Alewander Dubcek (1989), Aung San Suu Kyi (1990), Adem Demaci (1991), the mothers
of the Plaza de Mayo (1992), Oslobodjenje (1993), Taslima Nasreen (1994), Salima Ghezali (1997) and
Ibrahim Rugova in 1998.
29 For example, the liberation of Turkish members of Parliament in 1995 after strong EP pressure.
30 Clapham, 1991, p.82: Reference to EP Resolution Doc B2-88/89 passed in April 1989.
31 Smith also differentiated between positive conditionality (promising benefits to a state if it fulfils the
conditions), and negative conditionality (reducing, suspending, or terminating benefits if a state violates the
conditions). In addition, ‘political conditionality’ differs from the Cold War system of ‘linkage’ because it is
not limited to communist states and its objectives consist of promoting a broader political and, in certain cases,
economic reform.

18
conditionality can be regarded as both the effect and the cause of human rights considerations
applied to foreign policy-making.

The Union and its Member States’ approach to the application of political conditionality is a
combination of positive measures and negative responses.32 However, positive measures
fostering conditions for democracy, civil society, and sustainable development are favored.
This approach involves providing incentives for the promotion and protection of fundamental
rights and freedoms, and attempts to reform or address the deficiencies in the systems of the
recipient countries which lead to human rights abuses.

In 1995, the Union listed areas in which it wished to pursue ‘a positive, practical and
constructive approach,’ in order to promote fundamental rights and democratic principles
(COM(95)567final, 22.11.1995, p.10). In effect, the Commission has identified the following
priorities: support the transition to democracy through free and fair elections; promote and
consolidate the rule of law by supporting parliamentary activities, the independence of the
judiciary, as well as institutional and legislative reform; promote a pluralist civil society by
strengthening NGOs, an independent media, educational activities, and protection of the
vulnerable groups such as children, women, national minorities, victims of torture
(COM(95)567final, 22.11.1995, pp.10-11).

The Commission33 and the EP34 have been the driving forces within the Union and have
contributed significantly to the external dimension of the Union’s human rights policy. Based
on the Treaties and within the first pillar competences, the Community has the power to
conclude international agreements in the framework of external trade and development co-
operation ranging from association agreements, trade co-operation agreements, European
economic area agreements, to custom unions, or preference agreements. The Commission and
the EP have been involved in financing and in defining proactive and reactive measures through
the European initiative for democracy and the protection of human rights (chapter B 7-52 of
the Community budget) which in 1995 alone totaled 76 MECUs. The proactive approach is
generally preferred by the Commission which is the main actor in the disbursement of
humanitarian aid through ECHO, and is also involved in offering electoral assistance. It has
provided support to electoral processes in Russia (December 1993), South Africa (May 1994)
and Palestine (1995), and its projects have ranged from assisting the independent media, to

32 28 November 1991 Resolution.


33 The Commission's role in external policy is a significant one. Under the SEA, the Commission was formally
linked to EPC and the TEU encouraged a more assertive role by granting the Commission a non-exclusive right
of initiation in CFSP matters, and participation in the Presidency troika. The TEU improvements led to
organizational restructuring within the Commission. The post of Commissioner of External Political Relations
and a new DG (DG1A), with a Human Rights Unit, to handle External Political Relations were created
motivated by the prospect of a potentially greater foreign policy role for the Commission (Nugent, 1994, p.403).
34Most of the EP’s work in the area of human rights and foreign affairs is undertaken by the Political Affairs
Committee and by the Subcommittee on Human Rights. The latter has strongly advocated the inclusion of
human rights and the promotion of democracy among the declared objectives of the Union’s external policies
(Clapham, 1991, p.72).

19
supporting the judiciary and the parliamentary institutions, to ensuring the active participation
of all actors, especially women, in a civil society (COM(95)567final, 22.11.1995, pp.20-21).

Proactive measures alone are, however, insufficient responses to gross human rights abuses
and interruptions of the democratic process. The EU disposes of a number of instruments,
from both the first and second pillars, which can be used as negative responses to violations.
These range from delivering confidential or public démarches; modifying the content of co-
operation programs, deferring signature or decisions needed to implement co-operation,
reducing cultural, scientific and technical co-operation agreements, deferring a joint committee
meeting, postponement of new projects, imposing trade embargoes, arms embargoes or
suspension of military co-operation or any other forms of co-operation with the third country
concerned (Smith, Summer 1998, p.269). Other negative measures, which fall within the CFSP
field, are diplomatic sanctions, public démarches, and since the TEU, common positions, joint
actions, and economic sanctions. One of the principal problems associated with negative
measures is that they are usually in response to violations of political or civil rights, thus
leading to a narrow interpretation of human rights and disregarding the equally important
economic, social and economic rights (Marantis, Spring 1994, p.14). Nevertheless, they may
be instrumental in pressuring a violator to rectify situations which have transgressed respect for
human rights norms.

Under Article 228 of the TEU, the Commission is responsible for putting forward the proposal
on the basis of which economic sanctions are applied and thus has the power to apply a
negative human rights policy. At the same time, the EP can use its budgetary powers to
sanction human rights abuses in third countries. The blocking of MEDA funds by the EP in the
case of Turkey in 1997 is a successful illustration of the EP’s negative use of its budgetary
powers. However, this option is undertaken in ‘extreme’ situations due to the concern of the
Commission and the EP to avoid further suffering of the said country's population, which is
probably already affected by an oppressive régime (COM(95)567final, 22.11.1995, p.16). In
particular, the Commission’s preference for the proactive approach has also been explained
from the point of view that bureaucratic structures tend to continue the execution and
implementation of programs and projects once they have been established (Fouwels,
September 1997, p.315).

The motivations and consequences of conditionality have been under severe criticism by a
number of scholars (ex. Tomasevski), and indeed there exists much concern within the EU
with regards to the effectiveness of negative measures. It has been argued that unilateral
punitive or corrective action is incompatible with the EU’ s commitment to enter into dialogue
and consultation. If the EU and its Member States have no ties with countries with poor human
rights records, then they cannot apply their constructive policies nor use their instruments to
influence human rights and democracy progress within them. Imposing sanctions, or cutting off
relations would penalize the populations, and would be viewed by these countries as an
‘imperialistic’ or ‘moralistic’ policy on behalf of the EU. Furthermore, isolating countries
which may need aid and support to achieve their transition towards democracy and respect for
human rights may lead to greater instability within these countries, and therefore, general
regional instability. This would be contrary to the declared objective of the Union and the

20
Member States of promoting peace and stability worldwide. The application of negative
measures would also result in a deterioration of relations between the EU and the concerned
countries; moreover, this would negatively affect the bilateral relations that Member States
hold with these countries. Such a development would lead to an unstable and even unfriendly
environment, which would again defeat one of the goals of the EU and of the UN, and would
be detrimental to other national interests. Nevertheless, there have been cases such as the
executions of Ken Saro-Wiwa and his associates in Nigeria in 1995, which triggered the
imposition of sanctions on the part of the Community (van der Klaauw, March 1996, pp.100-
101). Finally, the criticisms which are formulated in response to negative measures question
the objectivity, efficiency, and even-handedness of the EU’ s human rights policy. Such
criticisms are believed to be detrimental to the promotion of respect and protection for
fundamental rights and freedoms since selectivity damages the credibility and, hence, the
success of a human rights policy (Hill(ed.), 1989, p.58).

Despite these obstacles, conditionality, through the combination of proactive and reactive
measures, has been applied by the European Union in its external affairs. Foreign policy in the
EU still remains principally intergovernmental and the Council is the main decision-making
institution. Although common actions and joint positions affirming the primacy of respect for
human rights have been adopted since the TEU, and the same principles are adhered to by the
Fifteen in the formulation of the CFSP, Member States are sometimes eager to pursue other
national interests and do not always wish to be hindered by human rights constraints.

Nevertheless, negative measures such as diplomatic sanctions have been imposed on Nigeria
for instance since 1993, and again in 1995 following the execution of Ken Saro-Wiwa, as well
as on Burma/Myanmar since 1996. The Council, composed of the Ministers of Foreign Affairs,
has in certain cases been more inclined in preferring the more visible, negative approach when
responding to human rights violations in order to satisfy public opinion.35 It should, however,
be noted that diplomatic sanctions are implemented nationally and therefore, there may be
some discrepancies between the applications of the various Member States (Smith, Summer
1998, p.271), and that the interruption of development corporations has tended to take place
against weak states such as Sudan, Zaire, Malawi, and Haiti. In cases of geopolitically or
commercially important countries such as Algeria, China and Indonesia, the EU Council has
limited its action to declarations and démarches criticizing or expressing concern about human
rights abuses (Marantis, Spring 1994, pp.22-24).

The advantages in pursuing a human rights policy ‘multilaterally’ are two-fold. First,
conditionality appears more ‘legitimate’ when it is applied by a group of fifteen states rather
than by one state alone. Second, the group effect of the Union is ‘politically safer’ since it also
shields the individual Member States from the responsibility of applying negative conditionality
measures alone, and from being individually targeted by the states which has been the object of
these measures. Hence, the EU has presented itself as an additional level through which

35 Fouwels (September 1997, p.315) also noted that the 1991 Resolution on human rights, democracy and
development, was adopted by the Ministers of Development Cooperation and not the Ministers of Foreign
Affairs of the Member States.

21
governments can pursue the respect of human rights. It has been suggested that it is easier for
a government to publicly criticize human rights abuses and especially to take action against
human rights violators within multilateral fora rather than within the framework of simple
bilateral diplomatic relations.36 This has been described as ‘burden-sharing’, and at the
European level it has been considered as an effective method of promoting human rights and
democracy due to its ‘shield effect’:
“if states wish to take an active/reactive human rights policy line they may find joint action
more effective, but they can use the ‘shield effect’ not only to ward off internal objections but
also to reassure themselves that they will not be singled out for a ‘cooling’ in bilateral relations
or even counter-measures.” (Clapham, 1991, pp.76-77)

There exist, nevertheless, obstacles which limit the application of political conditionality, and in
particular the negative approach, in certain aspects of the EU’ s external relations and CFSP. It
is not an easy task to devise universal criteria and it could be problematic to apply them
indiscriminately to all situations of human rights abuses. First, it is difficult to identify what
constitutes a human rights abuse which warrants public criticism and one economic sanctions
for instance. Second, no two situations are identical to the point that they can receive identical
treatment. And third, relying on an automated, unique procedure would compromise the
flexibility necessary for an effective response and ignore the particularities of the targeted state
(Marantis, Spring 1994, p.23). Due to these concerns, the Commission noted that negative
measures should be guided by objective and equitable criteria, they must be appropriate to the
circumstances and proportional to the gravity of the case, and they must not penalize the
population (SEC(91)1915final, 21.10.1992). There are, however, no strict guidelines and the
interpretation of these three principles is subjective to the case in question.

Unfortunately, responses are not always evaluated only on human rights and democracy
considerations since governments have other foreign policy and national objectives which need
to be accommodated as well (Smith, Summer 1998, p.270). This brings us back to Vincent’s
‘inescapable tension’ between human rights and other foreign policy objectives. Commercial
interests have prevented the adoption of any sanctions against China.37 Oil was not included in
the list of sanctions imposed on Nigeria in 1995, nor during the EU’ s critical dialogue on
human rights with Iran (Smith, Summer 1998, p.272). Strategic and geopolitical considerations
are in certain cases still attributed over-riding importance in foreign policy-making by the
Council and the Member States. Whether this is motivated by wanting to integrate a country
into closer co-operation in order to satisfy security concerns (for example, despite the conflict
in Chechnya, the EU concluded an interim agreement with Russia in June 1995) or whether
Member States wish to protect countries considered within their sphere of influence (for

36 Baehr (1994, p.32.) nevertheless identified the drawbacks of joint action (i.e. unanimity or qualified
majority are necessary. Given the variety of national interests involved, this is not always an easy task).
37The 53rd Session of the Commission on Human Rights in Geneva (10 March-18 April, 1997) is illustrative of
where economics and commerce took precedence over human rights. The Dutch Presidency’s proposal for a
resolution condemning Chinese human rights abuses was not supported by Spain, France, Italy, and Germany.
This ‘coincided’ with the improvement of French-Chinese commercial relations and the Airbus deal was
concluded. This ‘China case’ was a blow to the credibility of the EU’ s human rights policy, and indicative of
the continuing tensions between human rights and economic interests.

22
example, France blocked sanctions against Cameroon despite disruptions in the democratic
process), ‘inescapable tension’ arises. These are cases where selectivity and double standard
decisions guided the EU’ s human rights policy, depending on whether the Member States
refer to states they wish to confront, or states they do not want to politically marginalize. In an
EP 1997 working document, it is stated that:
“Regrettably, it seems easier to achieve agreement on sanctions against a poor
and small country - such as Burma or Equatorial Guinea - than against a larger
and stronger country - such as China, Turkey or Nigeria, where the scale of
human rights violations may be as great or greater.” (unpublished)

Within the EU institutions, policy-making is faced with the task of reaching an often difficult or
fragile compromise between the interests and policies of its fifteen Member States. Frequently
based on ‘package deals’, an EU policy or position is comprised of issues agreed upon in
exchange for other issues. In consequence, the EU position may be an agreement at the lowest
common denominator, and consistence and even-handness are often compromised.

Nevertheless, the importance human rights and democracy both within the Union and in its
relations with third countries cannot be underestimated.

“If commercial or strategic interests were the primary concern for the Union’s
external relations, then there would have been no need or desire to develop such a
far-reaching and innovative human rights policy. Conditionality has been a
source of friction with states such as Australia and the ASEAN countries. While
the norm of conditionality may not always trump other considerations, the EU is
none the less at the front of efforts to make it illegitimate to violate human rights
and conduct undemocratic politics.” (Smith, Summer 1998, p.274)

Conclusion

The European Union and its Member States have stated that their guiding principles are the
respect and promotion of human rights, democracy and the rule of law. This is a moral and a
legal duty that the EU has accepted and has committed itself to promote in its foreign policy.
This paper traced, through the EU’ s evolution, its objectives and priorities, and attempted to
present the extent to which human rights considerations have been pursued in the Union’s
policies. The EU institutions - Commission, Council and EP - now have contacts with nearly
every country in the world, with other regional organizations, and they represent the Union in
multinational fora such as the United Nations. Consequently, the potential they have to
promote the respect and protection of human rights through these contacts is enormous. It has
been, therefore, argued that the EU has the ability, but at times lacks the necessary political
will, to promote its human rights policy through pressure and dialogue within these
frameworks and with the instruments it has at its disposal. Although unity is lacking concerning
the approach to certain cases, and national interests sometimes take precedence, the potential
impact of EU action should not be underestimated.

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This leads to the question of whether certain EU institutions are more prone to promoting
human rights consideration in the Union’s external relations, and whether others are more
likely to compromise human rights objectives, or apply them selectively according to other
foreign policy goals. Two attitudes seem to exist within the Union’s human rights foreign
policy making. On the one hand, the EP and the Commission have used the powers granted to
them by the treaties to expand their input in the Union’s external relations. They have focused
a significant part of their activities on promoting the respect of human rights and fundamental
freedoms in the Union’s external affairs and integrating human rights objectives with other
policy goals, and on implementing proactive, and when necessary reactive, conditionality in the
EU’ s agreements and projects with third states. On the other hand, the Member States,
through the Council, though committed to the respect and international protection of human
liberties, remain largely preoccupied with realpolitik considerations. And, frequently, in cases
of EU relations with strategically important or commercially strong countries, human rights
concerns have tended to be limited to rhetorical declarations rather than concrete action.

The inescapable tension between human rights and foreign policy continues to persist at the
level of nations, and is transposed to the European level of policy-making, in particular through
the intergovernmental nature of CFSP. However, the international developments in the latter
part of this century, and the internal process of European integration has allowed EU
institutions to support the development of a consistent and even-handed human rights foreign
policy which in certain cases, especially those falling within Community competence, they have
succeeded in achieving it.

To conclude, the European Union with its Member States have been the initiators of a foreign
policy which attempts to include and promote ethical considerations, to integrate human rights
in international relations, and to unite the European continent under the guiding principles of
respect for human rights, democracy, and the rule of law.

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